Employment eligibility: What every employer needs to know
June, 2007
With the recent news of raids by immigration officials searching for illegal workers and the constant buzz of immigration reform, many employers are asking themselves:
- How do we verify employment eligibility of our employees?
- How do we complete the I-9 form?
- Do we need to verify the Social Security numbers of our employees?
- Does a "No-Match" letter from the Social Security Administration (SSA) mean that my employee is illegal?
What this means for your business:
Ensuring proper employment eligibility of employees is a critical issue for all employers. Some quick tips are included below to assist you with compliance.
1. New hires & Form I-9
It is illegal to hire a foreign national knowing that he or she is unauthorized to work in the United States. Consequently, employers must verify the identity and employment eligibility of each employee at the beginning of employment, by completing the immigration form I-9 for each employee.
The I-9 consists of three sections. In the first section, the employee confirms, on the date of hire, that he or she is either legally authorized to work in the U.S., and presents documents from three lists to the employer that establish his or her identity and employment eligibility. Some documents ("List A"), such as a U.S. passport, establish both identity and employment eligibility. Others ("Lists B and C") establish one or the other, but not both. Under the law, it is up to the employee, and not employer, to decide which document(s) he or she will present.
The employer signs the second section of the I-9 certifying that it has reviewed the document(s) presented by the employee and that they appear to be genuine. The employer must complete this within three business days of hire. Several rules apply to the employer's review. For instance, photocopies of original documents are not acceptable. However, an employer has no obligation to confirm an employee's social security number through the Social Security Administration -- if an original social security card is presented and appears genuine, the employer must accept it, unless it states "Not Valid for Employment." Of course, the employer must also confirm the employee's identity.
The third section of the I-9 is for the employer to complete if the employee's previous grant of work authorization has expired or if the employee is a rehire.
By physically examining the document(s) to determine if they are reasonably genuine, the employer establishes a "good faith" legal defense with respect to any charge of knowingly hiring an unauthorized foreign national. If the I-9 is properly completed, the government would need to show that the employer had actual knowledge of the unauthorized status of the employee. According to published newspaper reports, immigration officials believe the managers arrested in the recent immigration raids had actual knowledge.
2. Acceptable I-9 Documents
The I-9 is available free from the website (www.uscis.gov) of the U.S. Citizenship and Immigration Services (CIS). The form has an expiration date of 03/31/07, but CIS representatives state that employers should continue to use the form until an updated I-9 form is available.
Employers also need to be aware that CIS has changed the list of acceptable documents. The following documents from List A of the I-9 are no longer acceptable, despite being listed on the form:
- Certificate of U.S. Citizenship (Form N-560 or N-561).
- Certificate of Naturalization (Form N-550 or N-570).
- Permanent Resident Card or Alien Registration Receipt card with photograph (Form I-151). [However, a Permanent Resident Card or Alien Registration Receipt Card in Form I-551 is still acceptable].
- Unexpired Reentry Permit (Form I-327).
- Unexpired Refugee Travel Document (Form I-571).
In addition, employers should be aware that Form I-766, Form I-688, and Form I-688A are acceptable.
3. Current employees & No-Match letters
Increasingly, employers are receiving "No-Match" letters – a letter from SSA stating that the names or social security numbers reported by the employer do not match with information in the SSA's records. These "No-Match" letters do not constitute a finding of the employee's employment eligibility or immigration status. Therefore, an employer should not take any adverse action against the employee in response to receipt of a No-Match letter. Instead, the employer should follow the instructions contained in the letter and work with the employee in resolving the discrepancy in a timely manner.
By complying with the requirements of the I-9 and understanding the meaning of a "No-Match" letter, employers can be sure that their employees are properly authorized to work.
Please contact your Bullivant lawyer for further information.